THE ROAD NOT TAKEN: RESERVING LANDS FOR EXCLUSIVE INDIGENOUS USE AND OCCUPATION.

• Author: Wilkins, Kerry

1. INTRODUCTION

   If any proposition qualifies as "settled" within Canadian Aboriginal law, it is that the federal order of government, despite having legislative authority over "Lands reserved for the Indians," (1) may not reserve provincial Crown lands unilaterally for Indigenous peoples' occupation. In Williams Lake (2) in 2018, Brown J putitthis way:

   Canada could not--despite its obligation to set out reserves pursuant to Article 13 [of the British Columbia Terms of Union (3)]--unilaterally mark out provincial land as reserves. Article 13 and s. 92(5) of the Constitution Act, 1867 contemplated, rather, that the Province retain jurisdiction over the management and sale of the public lands belonging to the Province, meaning that Canada could establish an Indian reserve only where the Province agreed to transfer the requisite land to Canada. In other words, the Province, whose contemporary views on the reservation of lands for Indians were at variance (to put it mildly) from those of the Dominion Government, effectively held a veto over the setting apart of provincial Crown lands as a reserve. (4) Brown J wrote in dissent in Williams Lake, but not on this issue. The majority noted with approval that the Specific Claims Tribunal, whose decision was under review, had "openly acknowledged that Canada's discretionary power was limited by the need for provincial cooperation and that Canada could not unilaterally create a reserve"; (5) Rowe J, who concurred in part, called attention in so doing to "[t]he fact that the federal government could not unilaterally set aside reserve land without provincial cooperation". (6) A principal disagreement among the judgments in Williams Lake concerned the standard of conduct to be expected of Canada as fiduciary given its incapacity to reserve lands for First Nations unilaterally.

   This idea--that Canada cannot, as a matter of constitutional law, reserve lands unilaterally for Indigenous use--is not specific to British Columbia. It emerged originally from two early Privy Council decisions, (7) which held that surrendered (8) Treaty 3 lands in Ontario belonged not to the federal but to the provincial Crown. (9) Canada, therefore, needed provincial consent to create reserves within Ontario from such lands. As a result, the Treaty 3 signatories had to wait 42 years for reserves that the federal Crown had promised them in 1873. (10) Even then, they did not receive--and still have not received--all the reserve lands that they were promised. (11)

   The history of post-Confederation reserve creation, especially in British Columbia and Ontario, has been a history of workarounds and compromises, often at the expense of Indigenous peoples' interests. Politics, federal-provincial relations, and federal and provincial policy preferences of the moment no doubt shaped these processes and their outcomes. The effect of this history, however, has been to reinforce the perception that Canada was, and remains today, at the mercy of provincial discretion with regard to reservation of lands for exclusive Indigenous use. Part II of this article describes these developments and offers reasons why they should concern us.

   In Parts III and IV, I argue, with the full benefit of hindsight, that most, if not all, of these workarounds and compromises were, from a legal standpoint at least, probably unnecessary: that the standard account of federal constitutional incapacity to reserve lands for Indigenous peoples, though not wrong as far as it goes, is incomplete; and that the federal order, if it proceeds in the right way and for the right reasons, has probably had all along all the power it needs to reserve lands unilaterally for exclusive Indigenous occupation. We know from several judicial decisions of the highest authority (12) that acquisition, for valid federal purposes, of private or provincial Crown lands is permissible under valid federal expropriation legislation. Reserving lands for exclusive Indigenous use can be, I suggest, such a purpose, especially when the constitution, a treaty, or a statute requires it of Canada.

   Whether, and if so, when and how, the federal order should use (or should have used in the past) such authority on behalf of Indigenous peoples are extremely difficult questions that deserve careful thought. But undertaking that deliberation requires acknowledgement that such authority is, as a matter of law, available: that securing provincial consent to future Indigenous land reservations is, in the end, a political choice, not a constitutional necessity.

2. THE SOURCE AND CONSEQUENCES OF FEDERAL INCAPACITY

   1. SOURCE

      When the federal Crown concluded Treaty 3 in 1873, it believed, mistakenly, that it had unencumbered title to all the lands to which that treaty pertained, and that it could proceed at will to allocate reserves to the Treaty 3 peoples and to dispose of interests in the other surrendered lands. So it was that Canada, in 1883, licensed the St. Catherine's Milling and Lumber Company to harvest trees in a specified area not far from present-day Dryden, Ontario. (13)

      Two beliefs underpinned Canada's misplaced view of its entitlements. The first was that all the territory surrendered in Treaty 3 lay outside of Ontario's territorial boundaries. Even then, this proposition was controversial, and Canada knew it. Ontario and Canada agreed in 1871 on the need to determine the northwest boundary between Ontario and (what was then) the North-West Territory; each agreed to appoint a commissioner to work toward resolving the matter. (14) A federal order in council dated 28 November 1871 emphasized "that it is of much consequence that the ascertaining and fixing on the ground of the boundary line in question should be as far as possible expedited" and urged Ontario to follow Canada's lead in refraining, pending resolution of the dispute, from granting patents or mining licenses in the disputed area. (15) By 19 April 1872, it was clear that Ontario's view about the boundary differed substantially from Canada's (16) and that, on Ontario's view, most of the lands that were to figure in Treaty 3 had been, since Confederation, part of Ontario. (17)

      We know today that Ontario's view prevailed. An Imperial order in council dated 11 August 1884 (18) endorsed it; 1889 Imperial legislation (19) implemented it, settling Ontario's original (20) northwestern boundary. As a result, the majority of the lands surrendered in Treaty 3, including those that were the subject of St. Catherine's Milling's federal timber harvesting permit, belonged not to the federal Crown but to the Crown in right of Ontario, (21) "subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same." (22)

      A question worthy of further study (another time, unfortunately) is how much the Indigenous signatories to Treaty 3 understood at the time of the treaty about the boundary dispute--or about the existence and role of provinces in Confederation--and the potential impact of these issues on their interests after treaty. (23)

      Canada's second mistaken belief at the time of Treaty 3 was that it was purchasing for its own use the pre-existing Indigenous interest in the surrendered lands. (24) Had it been correct about this, Canada would have held an "[i]nterest other than that of the Province" (25) in the surrendered lands, to which the (provincial) Crown's beneficial interest would have been subject; in that case, the permit issued to St. Catherine's Milling and Lumber probably would have been valid. But that, the Privy Council concluded, was not the nature of the Treaty 3 transaction. The pre-existing Indigenous interest in the surrendered lands was not akin to a fee simple interest (26) and the "natural import of the language of the treaty which purports to be from beginning to end a transaction between the Indians and the Crown," was not consistent with Canada's submission "that a cession in these terms was in effect a conveyance to the Dominion Government of the whole rights of the Indians, with consent of the Crown." (27) According to the Judicial Committee, "there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished." (28) The effect of the surrender of the lands in Treaty 3 was to extinguish, not to convey, the Indigenous interest (whatever that was) in the relevant lands. (29)

      In the result, the federal timber harvesting permit was void. Treaty 3's effect was to extinguish the Indigenous interest in the surrendered lands; that interest merged into the (provincial) Crown's underlying title. Because the relevant lands turned out to lie within Ontario, (30) the beneficial interest in them belonged, now unencumbered, to Ontario. (31) "[W]hilst [Canada] had full authority to accept a surrender to the Crown [of the Treaty 3 lands]," the Privy Council said, it "had neither authority nor power to take away from Ontario the interest which had been assigned to that province by the [Constitution Act,] 1867." (32) Canada's exclusive authority to make laws about "Lands reserved for the Indians" (33) gave it no proprietary rights in respect of such lands. (34)

      This conclusion is surely correct, if we accept that Treaty 3 consummated a valid surrender of the Indigenous interest in the relevant lands. We have known since at least Entick v Carrington (35) that neither the state nor its officials may enter or help themselves to the properly of another without consent or proper legal authority. (36) So it was wrong for the federal Crown to purport to authorize a logging company to harvest timber on land that didn't belong to the federal Crown.

      From this, I think it follows that Canada, despite having promised to do so in Treaty 3, could not without proper independent legal authority create reserves unilaterally for the Treaty 3 First...